Socialization Article 41
The Article 41 of the Constitution of the State of Hesse (HV), the so-called socialization article , sees socialization before in the mining, iron and steel and energy and transport, which have never been realized in full. It was highly controversial and was decided in a separate referendum . Art. 41 HV continues to apply, but has largely become obsolete due to the Basic Law (GG) that has since come into force .
Content and legal classification
content
Art. 41 HV regulates immediate socialization. The socializations took place as soon as the constitution came into force. Specifically, should
"Transferred into common ownership: mining (coal, potash, ores), iron and steel production companies, energy industry companies and transport systems linked to rails or overhead lines"
"Supervised or administered by the state, the major banks and insurance companies and those companies named in Section 1 whose headquarters are not in Hesse."
Art. 41 para. 2 HV regulated the legal reservation : "The details determine the law."
Art. 41 para. 3 HV defined the role of the previous owners and board members as trustees .
"Anyone who is the owner of a company that is subsequently transferred to common ownership or is entrusted with its management must continue to act as trustee of the state until implementation laws are passed."
Context of the neighboring articles
Art. 41 HV stands in the context of the neighboring articles.
- Art. 39 HV forbids the “abuse of economic freedom - especially for monopoly power agglomeration and political power”. The provision of Art. 39 (2) HV, that companies are to be transferred to common property in the event of violation , has no longer been applicable since the Basic Law came into force .
- Art. 40 defines the term common property.
“Common property is the property of the people. According to more detailed statutory provisions, the disposal of this property and its administration should be granted to those legal entities who guarantee that the property exclusively serves the benefit of the entire people and that the concentration of power is avoided. "
- Art. 42 HV regulates land reform and the expropriation of large estates . This regulation is also contrary to the Basic Law and is no longer applicable.
- Art. 43 HV describes the aim of promoting small and medium-sized enterprises and Art. 44 HV describes the aim of promoting cooperatives . These objectives have been essential in the political debate.
- Art. 45 HV regulates the basic right to property . In the context of Art. 41 HV, Paragraph 2 is essential, which stipulates appropriate compensation in the event of nationalization.
Legal classification
Art. 41 HV collides with Art. 14 and Art. 15 GG and is therefore no longer applicable since the Basic Law came into force. An expropriation or socialization is possible according to Art. 14 or 15 GG in return for appropriate compensation.
Socializations made before the Basic Law came into force in accordance with Art. 41 HV are not affected by the Basic Law and are still valid.
The nationalizations based on Art. 41 HV were confirmed in the judgment of the State Court of Hesse (HStGH) of July 20, 1951 and June 6, 1952.
With the Conclusion Act on Art. 41 HV of July 6, 1954 and the Second Conclusion Act on Art. 41 HV of June 19, 1967, the expropriations based on Art. 41 HV were finally concluded.
background
After the Second World War , there was a fierce struggle for the future economic order in Germany . While socialist ideas prevailed in all parties immediately after the war, economically liberal ideas increasingly prevailed in the bourgeois parties in the course of the 1940s (also under the impression of the division of Europe and the co-ordination of democratic parties and institutions in the Soviet Zone ) . The history of Art. 41 HV follows this development.
Consultations in the state assembly advising the constitution of Greater Hesse
The election to the state assembly of Greater Hesse to advise the constitution on June 30, 1946 had assigned the SPD the role of the strongest parliamentary group. The SPD had a majority with the KPD as well as with the LDP or CDU .
| fraction | Seats |
|---|---|
| SPD | 42 |
| CDU | 35 |
| KPD | 7th |
| LDP | 6th |
| total | 90 |
The original positions of the parties
Erich Altwein proposed an economic constitution for the SPD , which was supported by the KPD. After that, mining , iron and steel industry , building materials industry , energy industry , banks , insurance companies , rail transport , large pharmaceutical and chemical industries , cinemas , post and radio should be nationalized immediately. In addition, companies that could acquire economic or political power due to their size or importance should be socialized. This position received support from the SPD and KPD through the trade unions .
At that time, the CDU Hessen also represented socialist ideas about economic policy, as they were later laid down in the Ahlen program .
Before the election to the state constitutional committee, the state executive of the CDU Hessen published the "Guidelines on the Constitution" at the end of June 1946. In it the CDU represented a “new socialism based on Christian responsibility”. The CDU distinguished between small and medium-sized companies and large corporations . "Non-personally bound property" was rejected.
Nevertheless, the CDU criticized the SPD draft as far too extensive. For the CDU, Erich Köhler called for the socialization of companies from sectors that would tend towards monopoly formation . These were the utilities, railways, post offices, major banks , insurance companies, and coal and steel companies.
The LDP rejected any definition of the economic order in the Hessian constitution. Instead , August-Martin Euler referred to the need to regulate the future economic order for all of Germany in a future German constitution. Large parts of the CDU and the Hessian chambers of industry and commerce shared this idea.
The Committee of 7
The fronts regarding the socialization question became increasingly hardened. In order to find a consensus, a committee of seven was formed, which tried to find common ways in a closed session.
The CDU presented a three-stage procedure. Nationalization was to be replaced by a tiered system that allowed state supervision, state administration or transfer to common ownership . Provided that the transfer into common ownership should be the standard case, the SPD could agree to this compromise. Furthermore, the SPD renounced the demand for nationalization of the film industry, cinemas, chemical companies and broadcasting and also met the Union on the question of compensation.
This yielding was easy for the SPD, since there were no nationally significant insurance companies and no major banks in Hesse (the major banks were seated in Berlin at the time ; Frankfurt was only to become the leading German banking center after the division of Germany). There were two large chemical companies in Hessen: Merck and Hoechst . However, both were withdrawn from the control of the German authorities (by the Allied Control Council Act No. 9 of November 30, 1945 and the American Military Government Act 52).
The compromise on the economic system was part of a constitutional compromise in which the CDU had shown concession, especially in questions of state structure and the SPD in questions of school policy.
Confrontation and Agreement
The compromise found in the Committee of 7 could not be upheld in the public discussion. Once again, the constitutional assembly divided into a left and a right camp. The SPD and CDU put competing constitutional drafts to a vote. This battle vote was decided with the votes of the SPD and KPD in favor of the SPD draft.
There was great concern within the SPD that a majority would be obtained in the upcoming referendum on the constitution. Furthermore, one saw the need to be able to form coalitions in the bourgeois camp for future government formations. The CDU also continued to strive for a consensus among the democratic parties and again offered talks.
On September 30, 1946, after a series of exploratory talks, Ludwig Bergsträsser , Friedrich Caspary and Christian Stock from the SPD and Erich Köhler , Karl Kanka and Georg Stieler from the CDU met.
The compromise, which was based on the proposals of the Committee of Seven, provided for the socialization article in the form described. On October 9, the American military government commented on the draft. She demanded that the socialization requirement of Art. 41 HV be weakened by the word “may” (English “should”), and justified this with the need to establish the pan-German economic order through a pan-German constitution.
With the exception of the LDP, all parties vehemently opposed this intervention. The SPD threatened to recommend that its supporters reject the constitution if the socialization article were weakened. The military government was in danger of being a supporter of big industry. General Lucius D. Clay therefore relented and on September 29th approved the draft constitution with the stipulation that the socialization article had to be voted on separately.
The referendum
On December 1, 1946, the referendum on the constitution took place; the voters voted with 76.4% for the whole constitution and with 72% for the article 41 HV.
Implementation of socialization
Initial approaches to implementation: The Hallstein Committee
The acting Minister for Economic Affairs of Hesse, Werner Hilpert (CDU), began to identify the companies concerned and appointed trustees who were bound by instructions . For the most part, the previous owners and board members were appointed as trustees.
The question of what “common property” should mean had not been clarified in the constitutional consultation. Hilpert therefore set up the Hallstein Committee. Under the chairmanship of Walter Hallstein , he worked with Karl Kanka and the SPD government director Emil Walk on a concept that was presented to the government and the state parliament.
According to the position of his party, Werner Hilpert tried to take the lead from Art. 41 HV and was thus in conflict with the SPD.
Disputes over socializations
After winning by the SPD state election in Hesse in 1946 one was grand coalition formed and cabinet Stock took Harald Koch (SPD), the Economics Department and the implementation responsibility Art. 41 HV.
During the implementation, Koch encountered resistance from the municipalities . The majority of the utilities to be nationalized were public utilities that were owned by the municipalities and contributed to a large extent to their income. The Hessian City and Community Day ensured that in the trustee law passed in August 1947, the communities and districts were named as trustees of their own public utilities.
The prevention of the socialization of the brown coal works and the role of the American occupying power
The role of the American occupying power in implementing socialization is controversial in the literature. Socializations were at odds with liberal economic policies in the United States. When the constitution was passed, there had already been an internal discussion in the USA as to the extent to which Germans should be given self-determination on this issue . The position of the US State Department , which advised against intervention by the occupying power in the interests of the democratization of Germany, was opposed to the position of Lucius D. Clay , who was responsible on the one hand for ensuring the supply of the population and his confidence in the necessary democratic maturity of the Germans was lower.
General Clay had already pushed through a separate vote on the socialization article when the constitution was passed. The presumed hope that the population would reject him had not been fulfilled.
The accusation that the American occupying power had prevented the implementation of the socializations, which has often been raised, is related to the failure of the socialization of the lignite mines and the (insignificant) iron and steel industry. On December 6, 1948, the US military government banned the socialization of these operations. The legal basis of this prohibition was the Control Council Act No. 75 on the Reorganization of the German Coal Mining and the Iron and Steel Industry of November 10, 1948.
This decision relieved the state government of one problem. At the end of 1947 there were 33 pits with 5000 employees and a monthly output of 200,000 tons. The largest operations were the Altenburg mine (previous owner was PreussenElektra ) with 1265 employees (the associated Borken power plant supplied a third of Hessian electricity production) and the Frielenburg union with 766 employees (previous owner was Berlin-based BUBIAG ). The companies were extremely deficient because the price of electricity and coal were subject to fixed prices.
The "social communities"
After branch after branch had fallen out of socialization, only small and medium-sized companies remained (with the exception of Buderus). The last larger companies would have been the potash mines in Northern Hesse. However, since their seat was outside Hesse, they were not affected.
These small and medium-sized enterprises were not only difficult to control (since no implementing law had yet been passed, the previous owners or directors had been trustees since 1946), they also posted losses.
Based on this situation, Harald Koch developed the idea of merging the companies concerned and operating them in the new legal form of “social communities”.
The supervisory bodies of these social communities should be made up of tripartite members . A third should be the "producers". According to Koch, these were the employees. Half of the mandates should be nominated by the workforce, the other half by the unions. The second third should come from the “consumers”. These mandates should be given by the municipalities, the consumer cooperatives and the chambers of commerce. The third third should be made up of the “regional community”. This was also planned on a tripartite basis and consisted of representatives from the state, unions and chambers. A board member should represent the employee side as a "social director".
The CDU had decided on its counter-model at its state party congress in November 1947. She rejected a merger to form large companies. Instead, state-owned sole proprietorships should be developed into “model social enterprises”.
Escalation in the state parliament
Contrary to the coalition agreement, which provided for joint action by the SPD and CDU, the SPD decided to introduce the draft law on the social communities against the will of its coalition partner CDU in the state parliament. The CDU still stuck to the coalition.
The first reading in the state parliament took place on January 26, 1949. Due to the efforts of the coalition parties to find a compromise solution, the parliamentary deliberations lasted almost two years. A few weeks before the state elections in Hesse in 1950 , the SPD decided to push through its draft law with the votes of the SPD and KPD against its coalition partner CDU.
However, the vote in the state parliament on October 25, 1950 resulted in a surprise. The SPD and KPD had 48 votes, the FDP and CDU 42 votes in the state parliament. However, 4 MPs from the KPD and one from the SPD called in sick. A KPD deputy was banned from the house because of violations of the state parliament's rules of procedure and an FDP deputy was also ill. Therefore, the majority of the KPD and SPD had shrunk to one vote. Since Else Voos-Heißmann (SPD) was absent without excuse, the motion was rejected with a tie of 41 to 41 votes.
The special case of Buderus
The only large company affected by Art. 41 HV was Buderus , which employed around 2000 people. In order to reduce the effects of the nationalization, the company was divided into the steel works (which were subject to Art. 41 HV) and processing (which were allowed to remain private). The smelting works made losses in the following years.
Legal processing
Judgments of the State Court
In two partial judgments of July 20, 1951 and June 6, 1952, the HStGH decided on an action by the FDP. Contrary to the overwhelming opinion of the legal literature, the validity of the nationalizations on the basis of Art. 41 HV as a pre-constitutional law was approved by the State Court. The effect of this basic decision was actually reversed by the individual resolutions:
- The nationalization of companies with public ownership of 50% or more was declared ineffective (this concerned the municipal utilities),
- The demerger of Buderus was declared effective, and above all:
- The nationalization of small and medium-sized enterprises was declared ineffective.
The last point was a weighing of Art. 43 HV (promotion of small and medium-sized enterprises) against Art. 41 HV (socialization of these). The court saw in Art. 43 HV a lex specialis that should be given priority.
With this, all nationalizations based on Art. 41 HV except Buderus were in fact canceled.
Closing Acts
After the judgments of the State Court , the only question that remained open was how to deal politically with the partial socialization of Buderus. The SPD had ruled against the CDU since 1950 and was independent on this issue. The expropriation of Buderus on the basis of Art. 41 HV was finally concluded with the Conclusion Act on Art. 41 HV of July 6, 1954 and the Second Conclusion Act on Art. 41 HV of June 19, 1967.
For this purpose the "Hessische Berg- und Hüttenwerk AG" was founded in 1954. The state brought its shares in the nationalized steelworks into this joint-stock company and paid the previous owners 15 million DM (in today's purchasing power 39 million euros) compensation. The previous owners brought in the processing part of the company. In 1967 the state share was sold and the chapter Art. 41 HV was finally closed.
epilogue
In the run-up to the state elections in Hesse in 1991 , the parties discussed the modernization of the Hessian constitution. In addition to Art. 41 HV, at the request of the CDU, the provisions on the prohibition of lockouts and the death penalty should also be deleted from the constitution. Since no agreement could be reached on this with the SPD, only Art. 26a, Art. 138 and Art. 161 HV (direct election of the mayors, mayors and district administrators) were changed.
literature
- Karl Reinhard Hinkel: Constitution of the State of Hesse, commentary . 1998, ISBN 3-8293-0220-7 , pp. 120-130.
- Wolf-Arno Kropat: denazification, participation, free school fees. Hessian state parliament debates 1947–1950. A documentation (= Political and Parliamentary History of the State of Hesse, Volume 31). Wiesbaden 2004, ISBN 3-930221-13-6 .
- Helmut Berding (ed.): The emergence of the Hessian constitution from 1946: a documentation . 1996, ISBN 3-922244-98-X .
- Detlev Heiden: Socialization Policy in Hesse 1946–1967. From the double failure of traditional German socialists and American industrial reformers. 2 volumes (social and economic history 4). Lit Verlag, Münster 1997, ISBN 3-8258-3064-0 .
- Harald Koch: The social communities. Legal and political science publishing house, Hamburg 1948 (presentation of the positions of Minister Harald Koch)
Web links
Individual evidence
- ^ A b Karl Reinhard Hinkel: Commentary on the Hessian Constitution , p. 122.
- ^ Karl Reinhard Hinkel: Commentary on the Hessian Constitution , p. 124.
- ↑ StAnz. 1951 p. 531.
- ↑ StAnz. 1952, p. 516.
- ↑ GVBl. P. 126.
- ↑ GVBl. P. 119.
- ↑ Wolf-Arno Kropat: Denazification ... , p. 14.
- ↑ Helmut Berding: The emergence of the Hessian constitution from 1946 , pp. XXVI – XXVII.
- ↑ Wolf-Arno Kropat: Denazification ... , p. 29.
- ↑ Helmut Berding: The emergence of the Hessian constitution from 1946 , pp. XXVI – XXIX.
- ^ Helmut Berding: The emergence of the Hessian constitution from 1946 , pp. XXIX – XXXII.
- ↑ First Implementing Act of August 25, 1947 to Article 41 of the Constitution of the State of Hesse of December 11, 1946 regarding the appointment of trustees of the State; GVBl, No. 12 of September 11, 1947, p. 72 ff.
- ^ Dörte Winkler: The American Socialization Policy in Germany 1945-1948 . In: Heinrich August Winkler (ed.): Political course setting in post-war Germany 1945–1953 . 1979, ISBN 3-525-36404-0 , p. 88 ff.
- ↑ Wolf-Arno Kropat: Denazification ... , p. 181 ff.
- ↑ Detlev Heiden: Socialization Policy in Hessen , p. 329 ff.
- ↑ Wolf-Arno Kropat: Denazification ... , p. 179 ff.
- ↑ It turned out quite differently. Der Spiegel No. 44/1950 of November 1, 1950, p. 32
- ↑ a b Wolf-Arno Kropat: Denazification ... , p. 183.
- ↑ Wolf-Arno Kropat: Denazification ... , p. 179.
- ↑ Wolf-Arno Kropat: Denazification ... , p. 185.
- ↑ Law of March 20, 1991 (GVBl. I p. 101) and Law of March 20, 1991 (GVBl. I p. 102).
